The opinion
On Application for Rehearing
The record here shows:
“The defendant excepts to that portion of his Honor’s Charge commencing with ‘this court expects a verdict in this case’ and continuing with ‘it cost the tax-payers money, etc.’ ”
This reference was not merely topical and hence not too indefinite within the illustrations given in Robinson v. State, 38 Ala.App. 315 , 82 So.2d 815 . We distinguish the illustration given in Cantor v. State, 27 Ala.App. 40 , 165 So. 597 , in that here counsel quoted the gist or substance— “this court expects a verdict in this case.” The reason for our rule that the exception be specific is to allow the judge to correct his error, if any, and to do so his approximate language should be quoted to him.
Moreover, the remarks of the court do not come under the category of instructions on the law of the case, and hence the rule as to exception does not apply, Meadows v. State, 182 Ala. 51 , 62 So. 737 . In Gidley v. State, 19 Ala.App. 113 , 95 So. 330 , it was sufficient merely to say, “I reserve an exception to your honor’s statements.”
The Attorney General cites us Moore v. City of Platteville, 78 Wis. 644 , 47 N.W. 1055 , Odette v. State, 90 Wis. 258 , 62 N.W. 1054 , State v. Price, 30 S.D. 299 , 138 N.W. 14 , and German Savings Bank of Davenport v. Citizens’ National Bank, 101 Iowa 530 , 70 N.W. 769 , 63 Am.St.Rep. 399 .
Moore and Price are cases (as is also Spick v. State, 140 Wis. 104 , 121 N.W. 664 ) in which the trial judges stated they expected verdicts. The German Savings Bank of Davenport case language was, “This case is submitted to you for decision, and not for disagreement.”
However, in Hodges v. O’Brien, 113 Wis. 97 , 88 N.W. 901 , the cause was reversed because the appellate court considered the trial judge had overemphasized the expense of another trial to the parties, the attorneys and the county.
The Alabama rule on verdict urging is based on potentiality — “the least appearance of duress or coercion.” Phoenix Ins. Co. v. Moog, 81 Ala. 335 , 1 So. 108 , 115; De Jarnette v. Cox, 128 Ala. 518 , 29 So. 618 ; Meadows v. State, supra; Holladay v. State, 20 Ala.App. 76 , 101 So. 86 ; Gidley v. State, supra.
In the instant case, we have a conjunction of (1) a spontaneous communication by the court to the jury at the beginning of a court day, apparently following deliberations by the jury on the prior afternoon for some three or four hours, (2) an emphasis on the public expense, (3) a statement that the court expects a verdict, (4) a statement that the taxpayers (a term which could also mean the “people”) expect a verdict, and (5) a statement that the taxpayers do not expect an exhibition of obstinacy.
True, any one of these singly and apart in another context might be free of prejudicial tendencies, but taken together we consider them to present the appearance— though unintended — of coercion. Gidley v. State, supra; Holladay v. State, supra.
Application overruled.